A Different Analysis:
Subsequent to a work injury, some employers have light duty that is available for an injured worker to perform. If the employer offers the injured worker a light duty job that the injured worker declines in some manner to perform, a modification or suspension petition is typically filed by the workers’ compensation insurance carrier. To be entitled to relief, the employer must provide evidence of a referral to an available job that is within the injured worker’s medical restrictions. If the employer produces such evidence, the burden will then shift to the injured worker to prove he/she acted in good faith to follow through on the job referral.
Union members are afforded a slightly different analysis. In St Joe Container Co v WCAB (Staroschuck), a 1983 Pennsylvania Supreme Court case, the court held that a job is not available to an injured union member if, by accepting the position, the union member will lose union benefits, such as seniority. St Joe container involved a machine operator who injured his lower back. The injured worker was in a union. The employer created a new, non union position of a shipping clerk for the injured worker to perform. The injured worker refused the job as he would lose seniority, security and associated benefits if he returned to a non union position for more than six months. In 2000, the Commonwealth Court in ABF Air Freight Systems, Inc v WCAB (Iten), applied the analysis of St Joe Container and determined that a union dock worker who was injured could decline a job offer for the non union position of an office clerk. The court analyzed the benefits the injured worker would receive with the non union office clerk position and concluded that there was not a suitable substitute for certain union benefits, even though the non union position afforded traditional employment benefits, and the injured worker did not act in bad faith by refusing the non union position.
It is critical that testimony be presented from the union member and also from an officer of the union, who can reference the collective bargaining agreement and explain to the judge the union benefits a member receives and how accepting a non union position can potentially lead to the forfeiture of union benefits, including seniority. Most recently, in a 2013 decision from the Commonwealth Court in Lowe v WCAB (Temple University Hospital), the court determined that a union nurse who was offered a non union job as a clinical coordinator did not respond in good faith to the offered job despite an allegation that union benefits and status would be affected and the employer had met its burden of proof on the petition to suspend compensation benefits. No evidence was admitted to establish how the union member’s union seniority or benefits would have been detrimentally affected.
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